Remove ImagesCops in Black & White in Court
January 27, 2011
On Nov. 19, 2007 Greensboro Police Capt. Brian James and Greensboro Police Officer Julius Fulmore filed a libel lawsuit against The Rhinoceros Times, and on Jan. 24, 2011, we finally got before a judge to argue that the suit should not go forward.
The lawsuit against The Rhino Times, Publisher William Hammer, Editor John Hammer and Jerry Bledsoe claims that Fulmore and James were defamed by 24 statements printed in The Rhino Times, 23 of them written by Bledsoe in the 92-part Cops in Black & White series about the investigations of police officers that took place during the administration of former Police Chief David Wray and one in a piece by John Hammer on the same topic.
The series set out to show that during the administration of Wray police officers were not investigated because of race, but because there was enough evidence to warrant an investigation of a police officer. Both James and Fulmore were investigated by the police during this time.
After hearing arguments from both attorneys for four hours, North Carolina Superior Court Judge Edgar Gregory noted the large box of documents he had been given and said he would have a decision on the defendants' motion for summary judgment by the end of April.
Newspapers don't get sued for libel by public officials very often because the standard has been set so high by the courts. To win, the plaintiffs, James and Fulmore, have to prove that a statement is defamatory, that it is not true and that those publishing the false defamatory statement knew it was false or showed reckless disregard for the truth. The US Supreme Court has ruled that it is not sufficient to prove that the plaintiffs had in their possession proof that the statement was false. The defendants have to prove they were aware of that proof and still printed the false defamatory information.
Summary judgment is the legal term for throwing the whole thing out before it gets in front of a jury. The court has to decide whether or not a reasonable jury presented with the evidence could find that the statements meet all three of the standards required for libel.
Before attorney Seth Cohen of Smith, James, Rowlett & Cohen, representing The Rhino Times, argued in favor of his motion for summary judgment or had the opportunity to explain to a judge why none of the 24 statements for which The Rhino Times is being sued met the high standard set by the courts, he found there was one more hurdle he had to get over.
This case has already been before the North Carolina Court of Appeals where The Rhino Times won, and has had a hearing where witnesses testified, and all of that took place before "discovery," which is when evidence is gathered.
There was also a telephone hearing in December held by Judge Albert Diaz of the North Carolina Business Court, just before his appointment to the US Fourth Circuit Court of Appeals was confirmed.
The telephone hearing before Judge Diaz was to settle all pending motions so the final depositions could go forward and the summary judgment motion could be heard. And there was a dispute about whether or not all pending motions had been settled by Diaz. Gregory, after a short recess to go over court records, decided that they had and said he would hear the argument for summary judgment.
Cohen went over his 54-page brief in which he pointed out that some of the statements are undeniably true, some are not defamatory and that there is no indication that The Rhino Times or Bledsoe, who is a New York Times best-selling author, had knowledge that any of the statements were false when they were printed.
One of the more interesting of the 24 statements in the suit is "James Hinson had been Brian James' training coach when he joined the department." A training coach is a senior officer who is assigned to work with a rookie during their first months on the street.
James says this isn't true, and Amiel Rossabi, who represents James and Fulmore, says it is defamatory because it is an attempt to link James to Hinson. Cohen noted that Hinson was a lieutenant in good standing with the Greensboro Police Department and that Bledsoe said he got the information from former Police Chief David Wray.
Wray in his deposition said he told Bledsoe that Hinson had been James' training coach because both former Chief Tim Bellamy and former Deputy Chief Randall Brady had told Wray that. He testified that he still didn't have any reason to believe it was not true. Wray also noted that an officer can have more than one training coach.
Rossabi argued that James was linked with Hinson in an effort to discredit James, and that Bledsoe never called James and asked him who is training coach was.
Bledsoe in his deposition had explained that there was a gag order put in place by former City Manager Mitch Johnson and police officers were not allowed to speak to him. Rossabi argued that the gag order didn't exist.
Another one of the 24 statements for which The Rhino Times and Bledsoe are being sued was one by Bledsoe stating, "Fulmore denied [what the prostitute told the detectives about Fulmore bringing crack cocaine to a hotel room and having sex with the prostitute], although he later failed a polygraph test."
The Greensboro police report on which Bledsoe testified he based the statement says that deception was indicated in Fulmore's answer to one question, and the answers to two others were deemed inconclusive. However, the police report concludes that the operator "stated from an overall evaluation of the examination, his certified opinion revealed deception was indicated." The actual polygraph operator's report, which was subpoenaed as evidence, states that Fulmore showed deception on all three questions.
Rossabi argued that a lie detector test is not pass/fail and that to say he failed the lie detector test was wrong when the proper term was showed deception. He also noted that Bledsoe did not have the polygraph examiner's report when he wrote the statement.
Cohen said that if you say someone failed a polygraph that everyone knows what that means. Wray in his deposition said the proper term was showed deception but that police officers used the word failed all the time.
Cohen also noted that the actual polygraph examiner's report showed that what Bledsoe wrote was true.
In his deposition, Fulmore said that the polygraph test was wrong because he had told the truth. But the fact is that the polygraph did indicate deception as reported by the licensed polygraph operator and as reported in the statement written by Bledsoe and published by The Rhino Times.
The back and forth on the statements continued for four hours. Cohen noted that the judge was being asked to be the supreme copy editor, because in instances like the polygraph case The Rhino Times was being sued for word choice.
In another instance, James was called a "suspect." Cohen pointed out that in his own deposition James said that he was a person of interest, not a suspect, but admitted that someone on television might call that a suspect.
Cohen repeatedly made the point that if this case were allowed to go forward it would put a stop to investigative journalism, since The Rhino Times was being sued for word choice and for not consulting enough sources in the opinion of the plaintiffs. Cohen noted that much of the information for the statements was taken straight from Greensboro Police Department reports and that there was no reason to doubt the veracity of these reports.
John Hammer, William Hammer and Bledsoe were all present for the hearing. Neither James nor Fulmore was present for the morning or afternoon sessions of court.